279 Mo. 249 | Mo. | 1919
Appellants seek a review by appeal from a judgment of the Circuit Court of Jackson County in proceedings under the Charter of Kansas City, and Ordinance No. 28181, entitled, “An ordinance, to open, widen and establish Twenty-third Street from the east line of New Brook Street to the westerly line of Southwest Boulevard, and condemning the" necessary
Appellants own property on Terrace Place and Fairmount Avenue, streets intersecting Twenty-third Street, which, by the judgment of the circuit court, were eliminated, from the improvement. It is contended that vehicular ingress to and egress from appellants’ property will be destroyed by reason of the failure to improve these streets; that the trial court’s judgment thereby -abrogated the ordinance in part and established an improvement not designed or approved by the municipal authorities, and one which, without compensation, will destroy the value of appellants ’ property.
November 21, 1916', Kansas City filed in the office of the Circuit Clerk at Kansas City a petition for the appointment of commissioners, together with Ordinance No. 28181, and the plats and maps required by the charter. The proceeding was brought to ascertain damages and benefits arising from the establishment of the general public improvement, described in the title to the ordinance, which was enacted under Section 16 of Article 6 of the Charter of Kansas City of 1909 (p. 277), and is as follows:
“Sec. 16. When the grading or regrading of any public highway or the grading or regrading of any highway and highway or highways intersecting therewith, or the construction of tunnels, subways or viaducts in, under or upon said public highway or highways, or the taking of private property by condemnation for
The portions of Ordinance No. 28181, pertinent to the matter at issue, are as follows:
Section 1 describes the land to be condemned for the widening of 23rd Street.
Section 3, that Twenty-third Street, Fairmount Avenue, Benton Place, Terrace Place, Mercier Place, Circle Avenue, East Street, Holly Street, West Prospect Place, Belleview Avenue, Madison Avenue, Monitor Place and Summit Street should be regraded to the established grade thereof between lines described.
Section 4 has reference to the cost of regrading intersecting streets.
Section 5, that the construction cost of the regrading of Twenty-third Street is to be spread over the entire benefit district and a suit brought under Article 8, Section 28, of the charter to test its validity.
Section 6, that owners of property damaged by reason of the change in the grade of the streets to be regraded, and not having waived claim thereto, shall have their damages ascertained and assesssed as provided in Article VII of the Charter of Kansas City, and-that such damages be raised by assessments against the city and against private property within the benefit district described in said ordinance and in the manner authorized by Article VII of the charter.
Section 7 describes the benefit district, against which the damages arising from the opening and widening of Twenty-third Street and the grading and regrading of the various other streets shall be assessed as benefits.
Section 8 provides for retaining walls on Twenty-third Street, and Section 8V2 for an easement for embankments where the proposed streets are above the level of abutting property.
Section 10, that the improvements therein provided for have been approved and recommended by the Board of Public Works of Kansas City, Missouri, by a resolution previously adopted.
Section 11, that the council found and declared that the Board of Public Works had caused plans and specifications to be prepared, “which shows the location and description of the general public improvement herein provided for as a whole,” and that all of the improvements provided for in the said ordinance, including the widening of Twenty-third Street, shall be deemed parts of one general public improvement, to be known as “Twenty-third Street Trafficway,” as authorized in Section 16 of Article 6 of the Charter of Kansas City, Missouri, 1909, and that said improvements are thereby provided for and authorized, and the ordinance referred to the resolutions of the Board of Public Works, setting out the plans and specifications of the said improvement.
Section 12 defines the court proceedings.
Section 13 has relation to condemnation fund certificates, and provides that:' “The Common Council hereby determines that the assessments to pay for property taken or damaged, as provided by Article 6, of the Charter of Kansas City, for the widening of Twenty-third Street, which have not been voluntarily paid within sixty days from the final confirmation of the verdict in the proceedings instituted to determine the amount of said assessments, shall be paid in ten equal annual installments bearing seven per cent interest per annum, for which the city treasurer shall issue
“The Common Council finds and declares that the Board of Public Works of Kansas City has heretofore, by Resolution No. 4837, adopted May 8, 1914, recommended that the Common Council provide, by ordinance, that the assessment to pay for property taken or damaged shall be made in ten equal annual installments, and that condemnation fund certificates equal in amount to the unpaid assessments, as provided by Articles VI and XIII of the Charter of Kansas City, be issued therefor.”
Section 14, that Kansas City shall not be liable to pay for work required to be paid in special tax bills.
Section 15, declaring the repeal of the former ordinance.
The west bluff of Kansas City at .Twenty-third Street is about eighty-five feet - above the Kaw River, or the “West Bottoms.” Anew diagonal thoroughfare named “New Brook Street,” extends along the bluff about twenty-five feet above this “bottom.” To open Twenty-third Street on a plane from Southwest Boulevard to New Brook Street will necessitate a cut' whose maximum will he about sixty feet between Fairmount Avenue and the present bluff. Twenty-third Street extends from the bluff eastward, and is now graded and open for travel and is paved from Terrace eastward, hut must be regraded to connect with Brook Street. The streets intersecting it, from New Brook Street eastward, are in order, Fairmount Avenue, Terrace Place, Mercier Place, Circle Avenue, East Street, Holly Street, West Prospect Place, Belleview Avenue, West Madison. Madison Avenue, Summit Street. These are to be graded or regraded, but are now open and in use from Twenty-third Street in both dirctions. The present grade of Terrace from Twenty-third Street southward to Twenty-fourth Street is 12.45 per cent descent, and that of Fairmount from Twenty-third Street to Twenty-fourth Street is 15.47 per cent descent. Householders on those intersecting streets must now approach their homes with loaded vehicles via Twenty-third Street and down the respective grades on Terrace or Fair-mount, and when leaving their homes must go southward over their respective streets to Twenty-fourth Street. These streets are so deep that wagons and vehicles must move southwardly downhill; they cannot move northward.
The proposed changes in grade in Twenty-third and in the intersecting streets are relatively slight from Southwest Boulevard westward until Mercier Street is reached. Here, the proposed grade practically meets the present grade. From this point proceeding west, Twenty-third Street, as proposed, will decline toward
The purpose of the proposed widening of Twenty-third Street was to afford an approach to a high line viaduct to be constructed between Kansas City, Missouri, and Kansas City, Kansas.
After the resolution was adopted, upon which the ordinance providing for this improvement was based, notice was published, describing the proposed improve
Each of the appellants filed his claim in writing, setting out that the building of this trafficway and the change in grade of intersecting streets, as provided in said ordinance and plans, would cause his property to be damaged, etc.
Kansas City introduced in evidence Ordinance No. 28181, the maps and plats filed with it, the bond ordinance, and the judgment record in the cause filed in the Circuit Court of Jackson County, Missouri, at Kansas City, styled, “In the matter of determining the validity of ordinance of Kansas City, Missouri, No. 28181, approved November 4, 1916, and the proposed tax lien thereunder for the cost of grading 'Twenty-third Street, as widened from the east line of New Brook Street to the east line of Jefferson Street.” This case was filed concurrently with Ordinance No.
This' validity-testing ordinance case came on before the court for hearing January 3, 1917, several days before the trial of this case began, and a judgment was entered which, among other things, recited that “the court finds, orders and adjudges that Ordinance of Kansas City No. 28181, approved November 4, 1916, entitled: An ordinance to open, Aviden and establish Twenty-third Street from the east line of New Brook Street to the westerly line of Southwest Boulevard and condemning the necessary land therefor; providing for and authorizing the work of grading and regrading Twenty-third Street, Pairmount Avenue, Terrace Street, etc., is in all respects valid and legal; and that the work be done in the manner and to the extent provided in said ordinance and a contract for said work, and that the same be paid for in special tax bills was expressly authorized.” The judgment further provided that the proposed lien of the special tax bills for said work should be a valid lien, against the property assessed to pay for said work.
Oral testimony was offered by Kansas City, shoAving that the Twenty-third Street Trafficway was a necessity; that the proposed depression in Pairmount Ave-’
Each claim for damages by change of grade was given .a number and considered in connection with the street upon which the tract abutted. If a tract was on the corner of Twenty-third Street and one of the intersecting streets, it had two numbers and was considered in connection with Twenty-third Street as well as such intersecting street. The city introduced real estate expert appraisers who inspected the various pieces of property involved. These expert witnesses agreed that lots on Terrace and Fairmount Avenue would sustain damages by the proposed change in grade in Twenty-third Street and the intersecting street, caused by this improvement. They also testified that the damages would be $24,288.53 to claimants on Fairmount Avenue, and $21,020.62 to those on Terrace Street.
Appellants’ witnesses estimated the damages at $65,032.70, and explained the reasons therefor, that unless the intersecting streets were graded as planned in the improvement, the approaches to appellants’ lots would be destroyed.
The following instructions given by the court are complained of:
Instruction No. 6 told the jury that they were to write thirteen separate verdicts in the case.
Instructions 10 and 13 told them they must separately assess the benefits arising from each particular improvement.
Instructions Nos. 14 and 15 told the jury that if the total benefits from the proposéd grading of any of the intersecting streets do not equal in dollars and cents the amount of damage to the lots on such side street, the jury need proceed no further as to such in
Instructions Nos. 16 and 17, in effect, told the jury that only the property abutting on Twenty-third Street might recover damages from the grading of that street.
The jury made findings of damages and benefits as to each feature of the improvement specified in the ordinance, except as to the damages from the grading of Fainnount, Terrace, Holly and East Streets, and-found that the damages exceeded the benefits upon each of such streets. No damages were awarded claimants on such four intersecting streets, the effect being to leave the improvement of such streets out of the proceeding entirely, but to sanction and approve all other features of the proposed improvement.
Claimants owning property on Madison, Summit, Monitor, Belleview, West Prospect, Circle and Mercier Streets, where the changes were relatively slight, were awarded damages, and the work ordered in the ordinance was authorized to be done, but the remaining four cross streets were left as before.
Appellants contend: (1) that, the improvement-being “one general public improvement” must stand or fall as such; (2) that the charter and ordinance required the jury to ascertain and report the damages caused to appellants’ property by the improvement as a whole and forbade a severance of the improvement into parts; (3) that the judgment was not responsive to the charter, to Ordinance No. 28181, nor to the resolutions of the Board of Public Works, and the court therefore .was without jurisdiction to render it; (4) the city and property owners in the benefit district were es-topped to question the validity of any portion of Ordinance No. 28181, because of the previous judgment, to which specific reference has been made in this statement. These contentions, to which may be added the objections to instructions given, embody appellants’ assignments of error.
I. Appellants insist that Ordinance No. 28181, with its accompanying documents, upon which this controversy centers, constitutes the petition in this case; and that but one cause of action was therein stated, which consisted of the contemplated improvement as an entirety. The conclusion, although somewhat figurative in form, is not foreign to a practical interpretation of . the ordinance and finds support in City of Tarkio v. Clark, 186 Mo. 285, in which the facts were not dissimilar to those at bar, and the issues were sufficiently parallel to render the ruling at least persuasive. Whether it be or not, the provisions of the ordinance interpreted in the light of the purpose of the improvement will enable- it to be determined whether its provisions are to be construed together as component parts of a harmonious whole or as separable powers which may be enforced or abandoned, as the tribunal empowered to execute them may determine. The ultimate purpose of the improvement was the establishment of a trafficway or great artery of transit between the two adjacent, cities. The municipal assembly clearly cognizant of the purpose in view, in framing the ordinance, employed terms therein comprehensive of the territory to be affected and specific as to the streets. It was therefore not the improving of Twenty-third Street, and in addition any of the intersecting streets, less than the entire number enumerated, that was to constitute a compliance with the ordinance, but of Twenty-third Street, and all other intersecting streets named. To illustrate: The ordinance provided that eleven intersecting streets should be graded or regraded so as to constitute approaches to the proposed trafficway. The verdict and judgment of the circuit court eliminated four of these, to-wit, Fair-mount Avenue, Terrace Place, and Holly and East Streets. This constituted but a partial enforcement of the ordinance, in that it construed its provisions, not as constituting one improvement, but as being separable, and capable of enforcement by piecemeal, at the dis
Section 16 of Article 6, Charter of Kansas City, 1909, set forth in the statement, under which it was sought to ascertain the damages and benefits, has been construed in Kansas City v. Woerishoeffer, 249 Mo. 1, as .authorizing an omnibus proceeding such as was rendered necessary by Ordinance No. 28181, where the purpose was to form one general public improvement.
Statutes of other States, similar in their material features to that at bar, have been upheld which provide for a combination in one proceeding of distinguishable public improvements.
In Wells v. Street Commissioners, 187 Mass. 451, 73 N. E. 554, there was a petition to quash special benefits on account of the widening and extension of Summer and Cove Streets, and the construction of the South Terminal Station in Boston, under a special statute combining those improvements. The court upheld the assessment, saying: “The constitutionality of the statute was considered and affirmed in Sears v. Street Commissioners, 180 Mass. 274. We are all of opinion that the Legislature, in dealing with the benefits by the amount of which the assessment should be limited, well might treat the changes in the streets and the construction of the station as parts of a single
In re Third, Fourth and Fifth Avenues, 49 Wasln 109, 94 Pac. l. c. 1078, similar to the instant case where the streets named were in one proceeding ordered improved by widening and cutting, it was stated: “Another point urged by appellants is that it was not. lawful for the council to combine in one ordinance and as one improvement, two improvements so different from each other as the widening feature and the change of grade feature of this ordinance. We think this contention is not well taken. The ordinance relates to a unified subject, the improvement of certain streets, and it is immaterial that such subject is capable of subdivision. Appellants argue that, in levying the assessment, no lot should be assessed for any part of the widening except such as is benefited by the widening, and then only the amount of its benefit from that source. We think each lot should bear its share of the expense to the extent of the resultant benefits received by it from the improvement considered as an entirety. The widening and also the change of grade are simply elements which enter into the reasoning by which the final result is reached when fixing the amount of benefits to each lot.”
In The City of Springfield v. Green, 120 Ill. l. c. 273, which was a proceeding providing for the pavement of a large number of streets and alleys, the Illinois Supreme Court said: “The ordinance is also assailed on the ground that it embraces more than one improvement. We do not think this is true, in point of fact. While many streets and parts of streets are embraced in the scheme of improvement adopted by the city, yet we regard them all as but parts of the same improvement. The city authorities, in adopting the ordinance, must have found, as a matter of fact, that these streets and parts of streets were so similarly situated, with respect to the improvement proposed to be made, as
As illuminative of the same doctrine under a different state ol facts, see City of Bloomington v. Reeves, 177 Ill. l. c. 168.
The ruling ol this Court is apposite, in Shaffner v. City of St. Louis, 31 Mo. 264, based as it is upon facts similar to tho°e at bar, and holding that a jury in ascertaining damages and benefits shall- be limited to the ordinance authorizing the improvement. The court’s opinion, expressed »vith that directness, characteristic of the style of Judge Scott, the writer, is, so far as pertinent to the issue here involved, as follows: “The proceedings were commenced under one ordinance directing the street to be opened, and before they wore finished the lines of that street were altered by another ordinance, and yet the proceedings, though in conformity to the latter ordinance, were continued under the original notice which required them to be under the former one. In a matter of this kind, where all the oivners of the property benefited by the opening of a street are to be taxed, it is impossible for the courts to ascertain how the variation of the line of the street will affect them. We cannot say that the alteration was not a material one; the circumstances forbid it. Some who might have acquiesced in the street as originally established, would have objected, perhaps, had they been aware of the change. The history of this proceeding shows how unwise it is to depart one iota from the law in condemning property for public use, when a few of the neighbors are by the law compelled to pay for the property condemned. The seeds of litigation in such cases will be sown broadcast, where any ground is given for the opinion that the requisite legal steps have not been taken in order to condemn the property and to assess the benefits. We are of the opinion that after the line of the street as originally established had been changed by an ordinance passed subsequently
The Woerishoeffer case, 249 Mo. l. c. 31, heretofore referred to, distinguishes the Shaffner case, but not in regard to the ruling doctrine announced in the latter, that proceedings which deprive an owner of his property must be conducted in strict conformity’ with the act which authorizes them, and if not so conducted they are void.
In Leach v. Cargill, 60 Mo. 316, we held that proceedings of the nature here involved were in invitum, purely statutory, and hence to be strictly construed. Further, confirmatory of this ruling, we held in St. Louis v. Koch, 169 Mo. l. c. 591, that every material requirement of the statute authorizing such proceedings must be strictly complied with. It will suffice in the face of the facts, as’ construed in the light of the cases cited, to say that Ordinance No. 28181 did not cpntemplate in the construction of the trafficway the improvement of Twenty-third Street, to the exclusion of the improvement of the intersecting" streets named.
II. The court, in giving. Instruction 6, in effect, told the jury that they should “write or cause to be written 13 separate verdicts as to the damages and benefits, one for each proposed improvement. These separate verdicts may, when written, be bound together,” etc. This was misleading. There were not thirteen separate improvements. There was but one general improvement as specified in Article 6, Section 16, of the Charter, and in the title and in Section 11 of Ordinance 28181. While this constituted but a misdirection as to the .mechanical preparation of the verdict, it was nevertheless error.
In re Third, Fourth, and Fifth Avenues, 49 Wash. 109, 94 Pac. 1075, 1078, construing a charter provision similar to ours, the Supreme Court of Washington held, “that in levying the assessment no lot should be assessed for any part of the widening except such as is benefited by the widening and then only the amount of its benefits from that source. We think each lot should bear its share of the expense to the extent of the resultant benefits received by it from the improvement considered as an entirety. The widening and also the change of grade are simply elements which enter into the reasoning by which the final result is reached when fixing the amount of benefits to each lot.”
The improvement in the instant case was an entirety so far, at least, as it related to the change of the grade of Twenty-third Street and its intersecting streets. If any part of such grading was illegal, the whole must-fail, as was held in City of Bloomington v. Reeves, 177 Ill. 168; if the conditions precedent had all been complied with, the improvement would have stood as a whole and the grading benefits to pay the grading damages assessed as a whole, because of the character of the improvement. As to the benefits assessed to pay the damages awarded for the lands taken in the condemnation proceeding, the charter and the ordinance in this case provide that they may be paid in ten annual installments ; while the benefits assessed to pay the damages awarded for the change of ’ the grade of the
To a like effect was the ruling in Alden v. City of Springfield, 121 .Mass. 27, a proceeding to revise a special assessment because of a street opening, where the court said: “The question was as to the benefit to the petitioner’s land by the whole construction of the street, and the petitioner had no right to introduce evidence as to the benefit resulting from any particular piece- of work done in the course of such construction.”
In Lincoln v. Street Commrs., 176 Mass. 210, which was a proceeding to quash a special assessment for constructing a system of sewers and establishing building lines in the City of Boston, in estimating the special benefits, the whole improvement was taken as one, instead of separating the items. The court said: “The statute seems to contemplate the course which was adopted, so that strictly the question would be, perhaps, whether the statute could not authorize it. But if we- assume the statute to be neutral, the question is, whether it can be said as a matter of law, that the commissioners were not warranted in finding street, sewer, and building lines all to be portions of one improvement. We are of opinion that they were warranted in their finding. The different elements are combined in the unity of a single though complex design.’ ’
It is complained that error was committed in the giving of sub-paragraphs (2) and (3) of instruction 13, which are as follows:
“(2) The court instructs the jury, that they have no right to assess any lot or parcel of land, in the prescribed benefit district, to pay for any of the proposed street improvements, except for such of said street improvements, if any, as will actually benefit the particular lot or parcel of land assessed by the jury;
“(3) And the jury are instructed that they have no right to assess any greater sum against any lot or parcel of land in the prescribed benefit district than it will be actually benefited by the particular improvement for which the jury assesses the same.”
These sub-divisions are contrary to the spirit and intent of Article 6, Section 15, of the Charter, and Section 11 of Ordinance No. 28181, which was intended to unite all of these elements of improvement into one proceeding.
As contended by appellants, a single improvement can not be dissected and the benefits assessed or withheld according to technical reasoning, but must be assessed in view of the fact that the various elements are united in a single improvement.
The refinements of reason cannot split a “general improvement” into unbeneficial parts; and no attempt should' be made to accredit any one portion of this
Instructions 14 and 15 contain' the same objection and will be considered together. They read as follows:
“14. If the jury shall consider and determine that the total benefits from the. proposed grading of any of the intersecting streets do not equal, dollars anc^ cents, the amount of damage to the lots on such side street, then the jury need proceed no further as to such intersecting street, except to so report to the court as to such intersecting street or streets, if any.
“15. If the jury shall consider and determine that the total benefits from the proposed grading of Twenty-third Street do not equal, in dollars and cents, the amount of damage to the lots abutting on Twenty-third Street, then the jury need proceed no further, except to so report to the court as to said Twenty-third Street.”
These instructions are subject to the criticisms heretofore stated, as' applicable to other instructions, and axe contrary to the law governing cases of this character. They contravene the last sentence of the instruction numbered one, which properly told the jury that they were “not at liberty to pass on the question as to whether there is a public necessity for the proposed proceeding’, that being a matter within the discretion of the Common Council, which. has already been determined.” In other words, the court announced in this instruction that the improvement was necessary as a matter of law, while instructions 14 and 15, in effect, told the jury that they might find that portions of 'the improvements were not needed sufficiently to require paying for them.
In a former instruction, the jury had been given the whole law on the 'question of damages exceeding benefits, and told that if all of the damages should exceed the benefits, they should go no further, but report, etc. Instructions 14 and 15, therefore, conflicted
Instructions 16 and 17 contain the same error, and ' will be considered together. They read:
“16. The jury are instructed that the only property entitled to damages, if any, for the grading of Twenty-third Street, is the property abut-thereon, and that the property situated upon the intersecting streets in this proceeding, not abutting on said Twenty-third Street, is not entitled to any damages, if any, occasioned to such property by such grading of said Twenty-third Street.
“17. The court instructs the jury that the owners of lands on the intersecting streets, not abutting on Twenty-third Street, are not entitled to any damage they may sustain by the proposed cut on Twenty-third Street.”
Appellants contend that these instructions involve a misapprehension of the meaning and purpose of the charter and ordinance provisions, as applied to the case at bar.
The charter, Article 6, Section 16, gave authority for the improvement in this case of Twenty-third Street with intersecting streets for the purpose ot opening, grading, regrading and the building of viaducts or tunnels, and Ordinance No. 28181 stated that it was drawn under authority of said article and section. The charter and ordinance made TAventy-third and the intersecting streets one for the purpose of the improvement, and the authorities which hold that the benefits need not be accredited to any particular part of the improvement, must be deemed to decide that the issue is, whether the complainant’s property is damaged by the improvement as a whole. The authority of the charter cannot be dissipated and the ordinance frustrated by instructions based upon the immaterial issue of whether
The land of all of the appellants was and will he affected by this general improvement. The improvement, under the limitations stated, is an entirety. If any part of same damages appellants, they are entitled to recover.
These instructions, therefore, are misleading and submit an issue not presented by the pleadings.
Appellants contend, and the facts show, that after the cutting down of Twenty-third Street, appellants cannot bring vehicles to their houses from the north via Twenty-third Street, because of the deep cut, and cannot bring them from the south because of the steep grade. Fairmount and Terrace will become cul ele sacs, and appellants’ property isolated; that these streets will be to all essential purposes vacated; that appellants have an easement in the access to their property, which this judgment erroneously destroys without compensation.
Glaessner v. Brewing Assn., 100 Mo. 508, was a suit brought to enjoin the Anheuser-Busch Brewing Association from constructing and maintaining a railroad on, over and across Broadway, Seventh and Ninth Streets in St. Louis, which run north and south. The track was to be laid between Dorcas and Arsenal Streets, which run east and west. Plaintiff’s property was seventy or seventy-five feet north of the proposed railroad and on the west side of Broadway. His complaint was that the railroad diverted travel from the front of his premises and interfered with his easement of ingress and egress. The court held that plaintiff was entitled to a permanent injunction, saying: “That the public travel will and must be greatly obstructed is clear, and if such an ordinance as this is to be upheld there is no telling where such municipal legislation will end. The trust reposed in the City of St. Louis to regulate the use of the streets is for the purpose of keeping them open and free to all, and we can but
In Downing v. Corcoran, 112 Mo. App. 645, plaintiff brought suit to enjoin defendant from placing and maintaining obstructions in a certain private road so that plaintiff’s free use of the road was interfered with. The parties both required a way to the public road. The plaintiff made use of a passway, and afterwards, at the instance of defendant, it was converted into a private road and became free to the use of the public, but defendant prevented its use by obstructions. The Kansas City Court of Appeals held plaintiff entitled to the injunction, saying: “In support of his objection to the conclusions of the trial court, defendant states several correct propositions of law and cites authority in connection therewith, but we are clear that the facts of the case leave them without just application. It is "contended that plaintiff is not entitled to connection with a public highway at every point along his line. That may be granted, especially if having connection at every point would inconvenience some other
In Putnam v. Boston & Providence Railroad, 182 Mass. 351, 1. c. 354, the law is thus stated: “It never has been held that one whose access to a general system of public streets in a city or town is entirely cut off, suffers only the same kind of damage by the discontinuance of a street as one of the public who is. merely obliged to travel further through public streets to reach his destination. So to hold would be to extend too far the doctrine previously stated in this opinion, which as noAV established sometimes causes hardships, although it rests on sound principles and generally accomplishes justice. ... We knoAv of no adjudication, nor of any sound principle that precludes the petitioners from recovering such damages as they suffered from the deprivation of access from their property to the public streets as a necessary result of the change ordered by the aldermen. It Avill seldom happen that the execution of such an order will cut off access in all directions to the public streets of a city, which before had been enjoyed as an attribute of the property. When It does happen, in a case in which the statute- makes compensation for damages, such damages are recoverable. ’ ’
The rulings of our OAvn and of other courts, upon the effect of the vacation of a street affording access to property, may be epitomized in the general rule announced in 1 Lewis on Em. Dom. (3 Ed.) sec. 206, p. 387, and sec. 123, p. 190, that the owner of property thus affected has a right of access in both directions which extends as far, at least, as the next connecting highway. A like doctrine • is announced in 2 Elliott on Eoads and Streets (3 Ed.), sec. 1181 and cases. The owner’s remedy, when deprived of such a right, has
